Citation Nr: 1607083 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 10-35 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to January 30, 2013, for left (non-dominant) shoulder rotator cuff strain with degenerative arthritis. 2. Entitlement to a disability rating in excess of 20 percent since January 30, 2013, for left (non-dominant) shoulder rotator cuff strain with degenerative arthritis. 3. Entitlement to a disability rating in excess of 10 percent prior to January 30, 2013, for lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine. 4. Entitlement to a disability rating in excess of 20 percent since January 30, 2013, for lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine. 5. Entitlement to a separate compensable rating for lumbar radiculopathy secondary to lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine. 6. Entitlement to a disability rating in excess of 10 percent prior to October 21, 2014, for osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease. 7. Entitlement to a disability rating in excess of 10 percent since October 21, 2014, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease. 7. Entitlement to a separate compensable rating for cervical radiculopathy secondary to osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from November 1987 to December 2003 with three years, 11 months, and seven days of prior active service. This matter comes to the Board of Veterans' Appeals from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2014 and April 2015, the Board remanded the claims for further development. In February 2016, the representative waived agency of original jurisdiction (AOJ) consideration of the private medical evidence that was received after the July 2015 supplemental statement of the case. 38 C.F.R. § 20.1304 (2015). FINDINGS OF FACT 1. The weight of evidence indicates that prior to January 30, 2013, left (non-dominant) shoulder rotator cuff strain with degenerative arthritis was not manifested by limitation of motion of the left shoulder to the shoulder level. 2. The weight of evidence shows that since January 30, 2013, left (non-dominant) shoulder rotator cuff strain with degenerative arthritis has not been productive of limitation of motion of the left shoulder to 25 degrees from the side. 3. The weight of evidence reveals that prior to January 30, 2013, lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine was not manifested by any of the following: thoracolumbar forward flexion not greater than 60 degrees; a combined range of thoracolumbar motion not greater than 120 degrees; muscle spasm, guarding, or localized tenderness severe enough to cause an abnormal gait or abnormal spinal contour; or incapacitating episodes of intervertebral disc syndrome over a 12-month period. 4. The weight of evidence reflects that since January 30, 2013, lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine has not been productive of thoracolumbar forward flexion to 30 degrees of less; or incapacitating episodes of intervertebral disc syndrome over a 12-month period. 5. The evidence is in equipoise as to whether since October 23, 2008, lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine has been productive of lumbar radiculopathy manifested by mild incomplete paralysis of the sciatic nerve of the left lower extremity. 6. The weight of evidence indicates that prior to October 21, 2014, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease were not manifested by forward flexion of the cervical spine not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 degrees; muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or any incapacitating episodes of intervertebral disc syndrome over a 12-month period. 7. The weight of evidence shows that since October 21, 2014, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease have been productive of forward flexion to 35 degrees with pain starting at 30 degrees and thus more nearly approximates forward flexion of the cervical spine to 30 degrees than forward flexion of the cervical spine to 40 degrees. 8. The evidence is in equipoise as to whether since August 13, 2008, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease have been productive of cervical radiculopathy manifested by mild incomplete paralysis of the lower radicular groups of the left upper extremity. CONCLUSIONS OF LAW 1. Prior to January 30, 2013, left (non-dominant) shoulder rotator cuff strain with degenerative arthritis did not meet the criteria for a disability rating in excess of 10 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5201 (2015). 2. Since January 30, 2013, left (non-dominant) shoulder rotator cuff strain with degenerative arthritis does not met the criteria for a disability rating in excess of 20 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5201. 3. Prior to January 30, 2013, lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine did not meet the criteria for a disability rating in excess of 10 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2015). 4. Since January 30, 2013, lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine does not met the criteria for a disability rating in excess of 20 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 5. Resolving doubt in the Veteran's favor, a 10 percent disability rating since October 23, 2008, is warranted for lumbar radiculopathy involving the sciatic nerve of the left lower extremity as secondary to lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2015). 6. Prior to October 21, 2014, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease did not meet the criteria for a disability rating in excess of 10 percent. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 7. Since October 21, 2014, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease has met the criteria for a 20 percent disability rating. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 8. Resolving doubt in the Veteran's favor, a 20 percent disability rating since August 13, 2008, is warranted for cervical radiculopathy involving the lower radicular group of the left upper extremity as secondary to osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8513 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in November 2008, January 2009, January and August 2013, and April, July, and August 2015 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In the November 2008 letter, VA notified the appellant of how VA determines the disability rating and effective date. The claim was most recently readjudicated in a July 2015 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The RO and Appeals Management Center (AMC) obtained the service, private, and VA treatment records, to include VA and private treatment records pursuant to the April 2015 Board remand, and afforded the appellant VA examinations, to include pursuant to the September 2014 remand. The Veteran also submitted private treatment records. The Board notes that the VA examinations provided sufficient clinical findings so as to allow the Board to evaluate the severity of his service-connected disabilities. Therefore, the Board finds that these examinations are adequate on which to base a decision. In short, the AMC fully complied with the directives of the two Board remands. Stegall v. West, 11 Vet. App. 268 (1998). Governing law and regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath, 1 Vet. App. at 594. Nonetheless, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board, however, acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2015). Analysis Entitlement to a disability rating in excess of 10 percent prior to January 30, 2013, for left (non-dominant) shoulder rotator cuff strain with degenerative arthritis Entitlement to a disability rating in excess of 20 percent since January 30, 2013, for left (non-dominant) shoulder rotator cuff strain with degenerative arthritis In a March 2005 rating decision, the RO granted service connection for left (non-dominant) shoulder rotator cuff strain and assigned a 10 percent disability rating under Diagnostic Code 5019 (bursitis). On October 23, 2008, the Veteran filed a claim for an increased rating for the left shoulder disability. Later in a February 2009 rating decision, the RO changed the diagnostic code to Diagnostic Code 5019-5101 (arm, limitation of motion, of). Although the RO rated the left shoulder disability under Diagnostic Code 5019 (bursitis), the Board finds that the rotator cuff strain with degenerative arthritis is more appropriately rated under Diagnostic Code 5003 because there is no medical evidence of bursitis and there is medical evidence of degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated based upon the nature and extent of any limitation of motion. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, but with X-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations, a 20 percent evaluation is assigned. With X-ray evidence of involvement of two or more major joints or two or more minor joint groups, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003. With any form of arthritis, painful motion is an important factor. It is the intent of the rating schedule to recognize actually painful, unstable or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under Diagnostic Code 5201, a rating of 20 percent is warranted when motion of the minor or major arm is limited to shoulder level. A 20 percent evaluation is also warranted for limitation of motion of the minor arm midway between the side and shoulder level. A 30 percent rating contemplates limitation of motion of the minor arm to 25 degrees from the side or limitation of motion of the major arm to midway between the side and shoulder level. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Regulations define the normal range of motion for the shoulder as forward flexion from 0 to 180 degrees, abduction from 0 to 180 degrees, external rotation to 90 degrees, and internal rotation to 90 degrees. 38 C.F.R. § 4.71, Plate I (2015). November 2008, January 2013, and October 2014 VA examinations, which included X-rays of the left shoulder, showed no ankylosis of the left shoulder or any impairment of the humerus, clavicle, or scapula. Physical examination revealed no recurrent shoulder dislocations. Therefore, Diagnostic Codes 5200 (scapulohumeral articulation, ankylosis of), 5202 (humerus, other impairment of), and 5203 (clavicle or scapula, impairment of) are not applicable. The Board will rate the rotator cuff strain with degenerative arthritis based on limitation of motion. The November 2008 VA examination reflects that the Veteran is right-handed. At the November 2008 VA examination, the range of motion in the left shoulder was the following: forward flexion to 170 degrees, abduction to 160 degrees, internal rotation to 70 degrees, and external rotation to 70 degrees. Thus, the Veteran had range of motion in the left shoulder above the shoulder level. The weight of evidence indicates that prior to January 30, 2013, left (non-dominant) shoulder rotator cuff strain with degenerative arthritis was not manifested by limitation of motion of the left shoulder to the shoulder level. As to the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. §§ 4.40, 4.45, and 4.59, at the November 2008 VA examination, pain occurred at the following range of motions: 170 degrees of forward flexion, 160 degrees of abduction, 70 degrees of internal rotation, and 70 degrees of external rotation. After repetitive use, the left shoulder was additionally limited by pain, fatigue, lack of endurance, and incoordination with pain being the major functional impact. The VA examiner noted that these limitations would additionally limit joint function by 15 degrees. In light of the limitations not resulting in limitation of motion near or at the shoulder level, these findings are insufficient to warrant a rating in excess of 10 percent for the left shoulder disability prior to January 30, 2013, pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. At the January 30, 2013, VA examination, the range of motion in the left shoulder was the following: forward flexion to 120 degrees and abduction to 90 degrees. A July 2013 private treatment record reflects that the range of motion in the left shoulder was the following: forward flexion to 145 degrees and abduction to 136 degrees. At the October 2014 VA examination, the range of motion in the left shoulder was the following: forward flexion to 180 degrees, abduction to 180 degrees, internal rotation to 90 degrees, and external rotation to 90 degrees. Thus, the Veteran has range of motion in the left shoulder at the shoulder level. The weight of evidence shows that since January 30, 2013, left (non-dominant) shoulder rotator cuff strain with degenerative arthritis has not been productive of limitation of motion of the left shoulder to 25 degrees from the side. As to the holding in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, at the January 2013 VA examination, pain occurred at 120 degrees of forward flexion and 90 degrees of abduction. After repetitive use, the range of motion in the left shoulder was still the following: forward flexion to 120 degrees and abduction to 90 degrees. The January 2013 examiner indicated that the functional losses or impairments were the following: less movement than normal and pain on movement. At the October 2014 VA examination, there was no additional limitation of motion after repetitive-use testing. The October 2014 VA examiner noted that there was no pain during any range-of-motion testing and that there was no functional loss in the left shoulder. The October 2014 VA examiner also added that the Veteran reported that flare-ups impact the function of the left shoulder in that it becomes painful and affects his work, especially the ability to lift weights. In light of the limitations not resulting in limitation of motion nearly approximating or at 25 degrees from the side, these findings are insufficient to warrant a rating in excess of 20 percent for the left shoulder disability since January 30, 2013, pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether a veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability - motion of the left shoulder to at least 160 degrees prior to January 30, 2013, and to the shoulder level since January 30, 2013 - with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The November 2008 VA examiner stated that the only effects on the claimant's daily activity are that his job requires sitting and that he should avoid carrying heavy objects. The January 2013 VA examiner noted that the left shoulder disability makes it difficult to lift weight or do overhead work. The October 2014 VA examiner indicated that the left shoulder disability did not impact the appellant's ability to perform any type of occupational task. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. In denying these claims, the Board observes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (the Court) held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the appellant or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the evidence of record does not show, and the claimant has not asserted, that his left shoulder disability rendered him unable to maintain substantially gainful employment. There is no indication that the claimant is unemployed. Accordingly, the Board concludes that the issue of TDIU has not been raised as to these claims. For the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against findings that a disability rating in excess of 10 percent prior to January 30, 2013, and a disability rating in excess of 20 percent since January 30, 2013, for left (non-dominant) shoulder rotator cuff strain with degenerative arthritis are warranted. Therefore, the preponderance of the evidence is against the claims, and they are denied. Entitlement to a disability rating in excess of 10 percent prior to January 30, 2013, for lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine Entitlement to a disability rating in excess of 20 percent since January 30, 2013, for lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is not greater 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Note (1): VA evaluates any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2015). The rating schedule further provides that an intervertebral disc syndrome (preoperatively or postoperatively) is rated under either the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 60 percent is in order for an Intervertebral Disc Syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is assigned when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is assigned when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Finally, a 10 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months Note (1): For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015). A 10 percent disability rating is warranted for mild incomplete paralysis of the sciatic nerve of one of the two lower extremities, and a 20 percent evaluation requires moderate incomplete paralysis of the sciatic nerve of one of the two lower extremities. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In the March 2005 rating decision, the RO granted service connection for lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine and assigned a 10 percent disability rating under Diagnostic Code 5242 (degenerative arthritis of the spine). On October 23, 2008, the Veteran filed a claim for an increased rating for the lumbar spine disability. In a March 2013 rating decision, the RO assigned a 20 percent disability rating for the lumbar spine disability effective January 30, 2013. A review of the November 2008 VA examination report and VA and private treatment records reflects that prior to January 30, 2013, lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine was not manifested by any of the following: thoracolumbar forward flexion not greater than 60 degrees; a combined range of thoracolumbar motion not greater than 120 degrees; muscle spasm, guarding, or localized tenderness severe enough to cause an abnormal gait or abnormal spinal contour; or incapacitating episodes of intervertebral disc syndrome over a 12-month period. The November 2008 VA examination report shows the following range of motion: forward flexion was to 70 degrees, extension was to 20 degrees, lateral flexion was to 20 degrees bilaterally, and rotation was to 20 degrees bilaterally. The combined range of thoracolumbar spine motion was 170 degrees. Although muscle spasm in the lower back was present, the gait was normal. The spine had normal curves. There were no signs of lumbar intervertebral disc syndrome with chronic and permanent nerve root involvement. As to the holding in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, at the November 2008 VA examination, pain occurred at the following degrees: 70 degrees of forward flexion, 20 degrees of extension, 20 degrees of lateral flexion bilaterally, and 20 degrees of rotation bilaterally. After repetitive use, the lumbar spine was additionally limited by pain, fatigue, lack of endurance, and incoordination with pain being the major functional impact. The VA examiner noted that these limitations would not additionally limit joint function in terms of degrees. In light of the limitations not resulting in limitation of flexion of the thoracolumbar spine near or at 60 degrees or the combined range of motion of the thoracolumbar spine being near or at 120 degrees, these findings are insufficient to warrant a rating in excess of 10 percent for the lumbar spine disability prior to January 30, 2013, pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. A review of the January 30, 2013, VA examination report and VA and private treatment records reflects that since January 30, 2013, lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine has not been productive of thoracolumbar forward flexion to 30 degrees of less, or incapacitating episodes of intervertebral disc syndrome over a 12-month period. The January 30, 2013, VA examination report shows that forward flexion was to 45 degrees. The January 2013 examiner stated that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. A July 2014 private treatment record shows that lumbar forward flexion was to 75 degrees. The October 2014 VA examination report reveals that forward flexion was to 80 degrees. As to the holding in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, at the January 2013 VA examination, pain occurred at 45 degrees of forward flexion. After repetitive use, forward flexion was still to 45 degrees. The January 2013 examiner indicated that the functional losses or impairments were the following: less movement than normal and pain on movement. At the October 2014 VA examination, pain occurred at 80 degrees of forward flexion. After repetitive use, forward flexion was still to 80 degrees. The October 2014 examiner indicated that the functional loss or impairment was only less movement than normal and that there was no factor that significantly limited functional ability during flare-ups or when the joint is used repeatedly over a period of time. The October 2014 VA examiner also added that the Veteran reported that flare-ups impact the function of the lumbar spine in that it becomes painful twice a week for up to eight hours and affects his work. In light of the limitations not resulting in limitation of forward flexion near or at 30 degrees, these findings are insufficient to warrant a rating in excess of 20 percent for the lumbar spine disability since January 30, 2013, pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. As for whether a separate rating for associated objective neurologic abnormalities is warranted, at the November 2008 VA examination, there was evidence of radiating pain on movement in the left leg. Nonetheless, the motor and sensory functions were normal and knee and ankle jerk reflexes were 2+ bilaterally. A February 2012 VA treatment record reveals that there was good muscle strength in the lower extremities bilaterally. The January 2013 VA examination report shows that muscle strength tests in the lower extremities were all normal bilaterally. There was no muscle atrophy, and reflexes and sensory exams were normal in the lower extremities bilaterally. The January 2013 VA examiner stated that the Veteran did not have radicular pain, any other signs or symptoms due to radiculopathy, or any other neurologic abnormalities or findings related to the lumbar spine disability. A May 2014 VA treatment record reflects that the reflexes in the lower extremities were 2+. The October 2014 VA examination report shows that muscle strength tests in the lower extremities were all normal bilaterally. There was no muscle atrophy, and reflexes and sensory exams were normal in the lower extremities bilaterally. The January 2013 VA examiner stated that the Veteran did not have radicular pain, any other signs or symptoms due to radiculopathy, or any other neurologic abnormalities or findings related to the lumbar spine disability. In light of the specific finding at the November 2008 VA examination that there was evidence of radiating pain on movement in the left leg, the Board finds that the evidence is in equipoise as to whether since October 23, 2008, (the date of the claim for an increased rating) lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine has been productive of lumbar radiculopathy manifested by mild incomplete paralysis of the sciatic nerve of the left lower extremity. There is no medical evidence that the Veteran had lumbar radiculopathy prior to October 23, 2008. Therefore, a compensable rating for lumbar radiculopathy prior to October 23, 2008, is not warranted. In light of the medical evidence discussed above showing an array of normal findings as to the left lower extremity, a rating in excess of 10 percent for lumbar radiculopathy involving the left lower extremity is not warranted because the weight of competent and probative evidence does not show moderate incomplete paralysis of the left sciatic nerve. Based on the normal findings as to the right lower extremity previously discussed, there is no competent medical evidence of associated objective neurologic abnormalities involving the right lower extremity. As to extraschedular consideration, with respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected lumbar spine disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability - prior to January 30, 2013, forward flexion was to 70 degrees with a combined range of thoracolumbar spine motion of 170 degrees, muscle spasm, and a normal gait; since January 30, 2013, forward flexion to at least 45 degrees; and since October 23, 2008, lumbar radiculopathy involving the sciatic nerve in the left lower extremity - with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The November 2008 VA examiner stated that the only effects on the claimant's daily activity are that his job requires sitting and that he should avoid carrying heavy objects. The January 2013 VA examiner noted that the lumbar spine disability makes it difficult to bend or twist at the waist, hard to lift weight, and hard to walk. The October 2014 VA examiner indicated that the lumbar spine disability impacted the claimant's ability to work in that he could only lift up to 20 pounds. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. As for the holding in Rice, the evidence of record does not show, and the claimant has not asserted, that his lumbar spine disability rendered him unable to maintain substantially gainful employment. There is no indication that the claimant is unemployed. Accordingly, the Board concludes that the issue of TDIU has not been raised as to these claims. For the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against findings that a disability rating in excess of 10 percent prior to January 30, 2013, and a disability rating in excess of 20 percent since January 30, 2013, for lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine are warranted. Therefore, the preponderance of the evidence is against the claims, and they are denied. Nonetheless, resolving doubt in the Veteran's favor, a 10 percent disability rating, but not higher, since October 23, 2008, is warranted for lumbar radiculopathy involving the sciatic nerve of the left lower extremity as secondary to lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine. Entitlement to a disability rating in excess of 10 percent prior to October 21, 2014, for osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease Entitlement to a disability rating in excess of 10 percent since October 21, 2014, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease Entitlement to a separate compensable rating for cervical radiculopathy secondary to osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease A 20 percent disability rating is warranted for mild incomplete paralysis of the lower radicular group of the minor extremity, and a 40 percent evaluation requires moderate incomplete paralysis of the lower radicular group of the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8512. In the March 2005 rating decision, the RO granted service connection for osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease and assigned a 10 percent disability rating under Diagnostic Code 5242 (degenerative arthritis of the spine). On October 23, 2008, the Veteran filed a claim for an increased rating for the cervical spine disability. A review of the November 2008 and January 2013 VA examination reports and VA and private treatment records reflects that prior to October 21, 2014, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease were not manifested by forward flexion of the cervical spine not greater than 30 degrees; the combined range of motion of the cervical spine not greater than 170 degrees; muscle spasm or guarding severe enough to result in abnormal gait or abnormal spine contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or any incapacitating episodes of intervertebral disc syndrome over a 12-month period. The November 2008 VA examination report shows the following range of motion: forward flexion was to 40 degrees, extension was to 40 degrees, lateral flexion was to 30 degrees bilaterally, and rotation was to 60 degrees bilaterally. The combined range of cervical spine motion was 260 degrees. There was no evidence of tenderness, and there were no signs of cervical intervertebral disc syndrome with chronic and permanent nerve root involvement. The January 2013 VA examination report shows the following range of motion: forward flexion was to 35 degrees, extension was to 35 degrees, right lateral flexion was to 45 degrees, left lateral flexion was to 25 degrees, right lateral rotation was to 50 degrees, and left lateral rotation was to 40 degrees. The combined range of cervical spine motion was 230 degrees. Although guarding or muscle spasm of the cervical spine was present, it did not result in an abnormal gait or spinal contour. The Veteran did not have cervical intervertebral disc syndrome. As to the holding in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, at the November 2008 VA examination, pain occurred at the following degrees: 40 degrees of forward flexion, 40 degrees of extension, 30 degrees of lateral flexion bilaterally, and 60 degrees of rotation bilaterally. After repetitive use, the cervical spine was additionally limited by pain, fatigue, lack of endurance, and incoordination with pain being the major functional impact. The November 2008 VA examiner noted that these limitations would not additionally limit joint function in terms of degrees. The January 2013 VA examination report shows pain occurred at the following degrees: 35 degrees of forward flexion, 35 degrees of extension, 45 degrees of right lateral flexion, 25 degrees of left lateral flexion, 50 degrees of right lateral rotation, and 40 degrees of left lateral rotation. The January 2013 VA examination report shows the range of motion after repetitive-motion testing was still the following: forward flexion was to 35 degrees, extension was to 35 degrees, right lateral flexion was to 45 degrees, left lateral flexion was to 25 degrees, right lateral rotation was to 50 degrees, and left lateral rotation was to 40 degrees. The January 2013 examiner indicated that the functional losses or impairments were the following: less movement than normal and pain on movement. In light of the limitations not resulting in limitation of flexion of the cervical spine nearly approximating or at 30 degrees or the combined range of motion of the cervical spine being nearly approximating or at 170 degrees, these findings are insufficient to warrant a rating in excess of 10 percent for the cervical spine disability prior to October 21, 2014, pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. The Board has reviewed the October 21, 2014, VA examination report. At that examination, forward flexion was to 35 degrees but pain began at 30 degrees. In light of the painful motion, the weight of evidence shows that since October 21, 2014, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease have been productive of more nearly approximating forward flexion of the cervical spine to 30 degrees than forward flexion of the cervical spine to 40 degrees. In the absence of medical evidence showing forward flexion of the cervical spine was to 15 degrees or less, a rating in excess of 20 percent is not warranted. As to the holding in DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59, the October 2014 VA examination report shows pain occurred at 30 degrees of forward flexion and that forward flexion was still to 35 degrees after repetitive-motion testing. The January 2013 examiner indicated that the functional loss or impairment was less movement and that pain significantly limited functional impairment during flare-ups or when the joint is repeated used over a period of time. In light of this limitation not resulting in forward flexion of the cervical spine being nearly approximating or at 15 degrees, these findings are insufficient to warrant a rating in excess of 20 percent for the cervical spine disability since October 21, 2014, pursuant to DeLuca and 38 C.F.R. §§ 4.40, 4.45, and 4.59. As for whether a separate rating for associated objective neurologic abnormalities is warranted, left C6 cervical radiculopathy has been diagnosed. Left carpal tunnel syndrome has also been diagnosed. The Board, however, is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). All neurologic symptoms will be considered in the rating assigned in the absence of medical evidence attributing such symptoms to left carpal tunnel syndrome. The November 2008 VA examination report reflects that the motor and sensory functions were normal and biceps and triceps jerk reflexes were 1+ bilaterally. A February 2012 VA treatment record reveals that there was good muscle strength in the upper extremities bilaterally. In an August 13, 2009, statement, a private neurologist noted that the neurologic symptomatology in the left upper extremity began about a year ago. Physical examination revealed mild tenderness in the left suboccipital, posterior cervical, and medial scapular areas, particularly the left medial scapular area. Adson's maneuver to the left caused pain in the neck, particularly in the left medial scapular area, which has been bothering the Veteran for the past year. Biceps reflexes were 2-3/4 and symmetrical whereas triceps reflexes were trace/4 and symmetrical. Upper extremity light-touch sensation and strength testing were intact on both sides. The January 2013 VA examination report shows that muscle strength tests in the upper extremities were all normal bilaterally. There was no muscle atrophy, and reflexes and sensory exams were normal in the lower extremities bilaterally. The January 2013 VA examiner stated that the Veteran did not have radicular pain, any other signs or symptoms due to radiculopathy, or any other neurologic abnormalities or findings related to the cervical spine disability. A May 2013 private treatment record reflects that the neurologic symptoms were consistent with cervical radiculopathy. The Veteran had radiation of pain and numbness sensation along the cervical distribution towards the left. Motor and sensory functions were normal, and there were no neurologic deficits on examination. An April 2014 VA treatment record shows that there was chronic neck pain with radiation to the left shoulder and tingling and numbness in all five left fingers. A May 2014 VA treatment record reflects that muscle strength was 5/5 in the bilateral upper extremities except for possibly very mild decreased strength in the left biceps. The reflexes were symmetric and 2+ at the biceps, triceps, and brachioradialis. The Hoffman's test was negative for any upper motor neuron signs. Spurling's test was positive on the left side with increased tingling in the left hand and increased supraclavicular region pain. At a June 2014 VA electromyography and nerve conduction study, motor strength was 5/5 in the upper extremities except for 4+/5 in the right elbow flexors and 4/5 in the left elbow flexors. Sensation in the upper extremities was normal to light touch and pinprick except for decreased sensation to light touch and pinprick at the left ring and small fingers. Phalen's, Tinel's, and Spurling's tests were all negative. The study revealed left median neuropathy but no ulnar neuropathy at the left elbow, no other peripheral neuropathy in the left upper extremity, and no left motor cervical radiculopathy. A June 2014 VA treatment record indicates that there was radicular pain across the left shoulder and lateral arm and into all fingertips. The October 2014 VA examination report shows that muscle strength tests in the upper extremities were all normal bilaterally. There was no muscle atrophy, and reflexes and sensory exams were normal in the lower extremities bilaterally. The October 2014 VA examiner stated that the Veteran did not have radicular pain, any other signs or symptoms due to radiculopathy, or any other neurologic abnormalities or findings related to the cervical spine disability. In light of the specific evidence of cervical neuropathy since August 13, 2008, one year prior to the August 13, 2009, statement from the private neurologist, the Board finds that the evidence is in equipoise as to whether since August 13, 2008, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease have been productive of cervical radiculopathy manifested by mild incomplete paralysis of the lower radicular groups of the left upper extremity. There is no medical evidence that the Veteran had cervical radiculopathy prior to August 13, 2008. Therefore, a compensable rating for cervical radiculopathy prior to August 13, 2008, is not warranted. In light of the medical evidence discussed above showing an array of normal findings as to the left upper extremity, a rating in excess of 10 percent for cervical radiculopathy involving the left upper extremity is not warranted because the weight of competent and probative evidence does not show moderate incomplete paralysis of the lower radicular group involving the left upper extremity. Based on the normal findings as to the right upper extremity previously discussed, there is no competent medical evidence of associated objective neurologic abnormalities involving the right upper extremity. As to extraschedular consideration, with respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the Veteran's service-connected cervical spine disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability - prior to October 21, 2014, forward flexion was at least to 45 degrees with a combined range of cervical spine motion of at least 230 degrees, and muscle spasm or guarding not resulting in abnormal gait or spinal contour; since October 21, 2014, painful forward flexion at 30 degrees with forward flexion to 35 degrees; and since August 13, 2008, cervical radiculopathy involving the lower radicular group in the left upper extremity - with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The November 2008 VA examiner stated that the only effects on the claimant's daily activity are that his job requires sitting and that he should avoid carrying heavy objects. The January 2013 VA examiner noted that the cervical spine disability makes it difficult to turn the neck or work overhead. The October 2014 VA examiner indicated that the cervical spine disability impacted the claimant's ability to work in that he could only lift up to 20 pounds with his left arm. The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. As for the holding in Rice, the evidence of record does not show, and the claimant has not asserted, that his cervical spine disability rendered him unable to maintain substantially gainful employment. There is no indication that the claimant is unemployed. Accordingly, the Board concludes that the issue of TDIU has not been raised as to these claims. For the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against findings that a disability rating in excess of 10 percent prior to October 21, 2014, for osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease. Therefore, the preponderance of the evidence is against the claim, and it is denied. Nonetheless, a 20 percent disability rating, but not higher, effective October 21, 2014, is warranted for osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease. Moreover, a 10 percent disability rating, but not higher, since August 13, 2008, is warranted for cervical radiculopathy involving the lower radicular group of the left upper extremity as secondary to osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease. ORDER Entitlement to a disability rating in excess of 10 percent prior to January 30, 2013, for left (non-dominant) shoulder rotator cuff strain with degenerative arthritis is denied. Entitlement to a disability rating in excess of 20 percent since January 30, 2013, for left (non-dominant) shoulder rotator cuff strain with degenerative arthritis is denied. Entitlement to a disability rating in excess of 10 percent prior to January 30, 2013, for lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine is denied. Entitlement to a disability rating in excess of 20 percent since January 30, 2013, for lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine is denied. A separate 10 percent disability rating, but not higher, effective October 23, 2008, for lumbar radiculopathy involving the sciatic nerve of the left lower extremity as secondary to lower back strain with degenerative joint disease and degenerative disc disease of the lumbosacral spine is granted subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 10 percent prior to October 21, 2014, for osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease is denied. A 20 percent disability rating, but not higher, since October 21, 2014, osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease is granted subject to the laws and regulations governing the payment of monetary benefits. A separate 20 percent disability rating, but not higher, effective August 13, 2008, for cervical radiculopathy involving the lower radicular group of the left upper extremity as secondary to osteophytic disease of the cervical spine and chronic neck strain with degenerative disc disease is granted subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs